United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS,
DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.
Andrew Spotted Elk is an inmate at the South Dakota State
Penitentiary in Sioux Falls, South Dakota. He filed this
lawsuit pursuant to 42 U.S.C. § 1983 and requested leave
to proceed in forma pauperis pursuant to 28 U.S.C. §
1915. Docket 1; Docket 2. This Court screened Spotted
Elk's complaint pursuant to 28 U.S.C. § 1915A. For
the reasons below, his motion to proceed in forma pauperis is
granted and his complaint is dismissed in part and survives
screening in part.
August 6, 2016, Spotted Elk alleges Taylor Yost
"kneed" him in the face while he was cuffed and
chained down "while being held down by two other
correctional officers." Docket 1 at 4. Spotted Elk
further alleges that Taylor Yost called him "a sex
offender and a rapist" after Taylor Yost
"kneed" him. Id. at 4-5.
Elk submitted a request for administrative relief and
appealed his request for relief. Id. Spotted Elk
filed this complaint and motion for leave to proceed in forma
pauperis on July 26, 2017. Id. at 1. He raises
claims of excessive force by an officer and hate crime.
Id. at 4-5. He claims injuries of swelling, redness,
and bruising to the face and emotional and psychological
trauma. Id. In relief, Spotted Elk requests
compensation for physical, mental, emotional, and
psychological damages. Spotted Elk further requests legal
fees, "future psychological treatment, "
"consent decrees for immediate administrative action
against those in question, " "training for officers
on proper handling of situations regarding inmates in similar
situations." Id. at 7.
Motion to Proceed In Forma Pauperis
the Prison Litigation Reform Act (PLRA), a prisoner who
"brings a civil action or files an appeal in forma
pauperis . . . shall be required to pay the full amount of a
filing fee." 28 U.S.C. § 1915(b)(1). The court may,
however, accept partial payment of the initial filing fee
where appropriate. Therefore, " '[w]hen an inmate
seeks pauper status, the only issue is whether the inmate
pays the entire fee at the initiation of the proceedings or
over a period of time under an installment plan.' "
Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997) (quoting McGore v. Wriggksworth, 114 F.3d 601,
604 (6th Cir. 1997)).
initial partial filing fee that accompanies an installment
plan is calculated according to 28 U.S.C. § 1915(b)(1),
which requires a payment of 20 percent of the greater of:
(A) the average monthly deposits to the prisoner's
(B) the average monthly balance in the prisoner's account
for the 6-month period immediately preceding the filing of
the complaint or notice of appeal.
has reported average monthly deposits to his prisoner trust
account of $0 and an average monthly balance of
negative $709.58. Docket 3. Based on this
information, the Court grants Plaintiff leave to proceed in
forma pauperis and waives his initial partial filing fee. In
order to pay his filing fee, Plaintiff must "make
monthly payments of 20 percent of the preceding month's
income credited to the prisoner's account." 28
U.S.C. § 1915(b)(2). The statute places the burden on
the prisoner's institution to collect the additional
monthly payments and forward them to the Court as follows:
After payment of the initial partial filing fee, the prisoner
shall be required to make monthly payments of 20 percent of
the preceding month's income credited to the
prisoner's account. The agency having custody of the
prisoner shall forward payments from the prisoner's
account to the clerk of the court ...